• See supra, Sec. 893.
In Reed v. Washington Ins. Co., 138 Mass. 572, the action was brought upon an insurance policy in the form prescribed by the Massachusetts statute. The policy contained the following provision: "In case any difference of opinion shall arise as to the amount of loss under this policy, it is mutually agreed that the said loss shall be referred to three disinterested men, the company and the insured each choosing one out of three persons to be named by the other, and the third being selected by the two so choosen, provided that neither party shall be required to choose or accept any person who has served as a referee in any like case within four months; and the decision of a majority of said referees in writing shall be final and binding on the parties." At the conclusion of the plaintiff's evidence, the judge declined to rule, as requested by the defendant, that the plaintiff could not recover without evidence of a reference to arbitration. This ruling was sustained by the full court on the ground that the clause was not expressed as a condition precedent. See also Clement v. British American Ass. Co., 141 Mass. 298, 5 N. £. 847.
In Lamson Store Service Co. v.
Prudential Ins. Co., 171 Mass. 433, 60 N. E. 943, the action was brought upon a policy in the form prescribed by a later Massachusetts statute (St. 1887, c. 214, Sec. 60). The policy contained a clause similar to that quoted above, except for the following added words, "and such reference, unless waived by the parties, shall be a condition pre-cedent to any right of action in law or equity to recover for such loss" The court held that the words constituted a valid condition precedent to the plaintiff's right of action.
71 "It was held in Home Ins. Co. v. Morse, 20 Wall. 445, 22 L. Ed. 305, that a statute making it a condition precedent to the granting of the privilege to a foreign corporation to do business within a State, that it would not remove suits from State to Federal courts, was unconstitutional and a contract to that effect was invalid. . . . This point was reaffirmed expressly in Doyle v. Continental Ins. Co., 94 U. S. 535, 24 L. Ed. 148. This principle has been followed in numerous decisions of Circuit and District Federal courts. Prince Steam-Shipping Co. v. Lehman, 39 Fed. 704; Slocum v. Western Assur. Co., 42 Fed. 235; The Etona, 64 Fed. 880; Gough v. Hamburg Amerikan-ische Packetfahrt Aktiengesellschaft, 158 Fed. 174; United States Asphalt Refining Co. v. Trinidad Lake Petroleum Co., Ltd., 222 Fed. 1006." Nashua River Paper Co. v. Hammerdeed in any way confining the right of a party to bringing action in a particular court, or in the courts of a certain jurisdiction,72 will be enforced. For the same reason a provision in a mortgage that a mode of sale therein set forth should "be exclusive of all others" was held ineffectual;73 and perhaps somewhat unnecessarily a provision of a by-law adopted as part of mill Paper Co., 223 Man. 8, 15, 111
N. E. 678, L. R. A. 1916 D. 691. See also David Lupton's Sons Go. v. Automobile Co., 225 U. S. 489, 56 L. Ed. 1177, 32 S. Ct. 711; Dunlop v. Mercer, 166 Fed. 545, 551, 86 C. C. A. 435.
72 In Nashua River Paper Oo. p. Hammermill Paper Co., 223 Mass. 8, 15, 111 N. E. 678, L. R. A. 1916 D. 691, the court said: "It was held in Benson v. Eastern Building & Loan Assoc., 174 N. Y. 83, 86, 66 N. E. 627, in substance that parties cannot in the ordinary case by contract deprive courts of competent jurisdiction of their power to adjudicate causes on the ground that that jurisdiction is prescribed by law and it cannot be increased or diminished by agreement of parties.
"In Mutual Reserve Fund Life Assoc, v. Cleveland Woolen Mills, 82 Fed. 508, 27 C. C. A., 212, 214, it was said by Lurton, J.: 'The policy [of insurance]. . . contained a stipulation that no suit in law or equity should be brought upon it except in the Circuit Court of the United States. This provision, intended to oust the jurisdiction of all State courts, is clearly invalid. Any stipulation between contracting parties distinguishing between the different courts of the country is contrary to public policy, and should not be enforced.'
" To the same effect see - Savage v. People's Building, Loan, etc., Assoc., 45 W. Va. 275, 282, 31 S. E. 991; Owsley v. Yerkes, 187 Fed. 560, 109 C. C. A. 250; Shuttleworth & Co. v. Marx & Co., 159 Ala. 418, 428, 49 So. 83; Matt v. Iowa Mutual Aid Association, 81 Iowa, 135, 46 N. W. 857, 25 Am. St. Rep. 483; Indiana Mutual Fire Ins. Co. v. Routledge, 7 Ind. 25; Bartlett v. Union Mutual Fire Ins. Co., 46 Me. 500; Reichard v. Manhattan life Ins. Co., 31 Mo. '518; First Nat. Bank of Kansas City v. White, 220 Mo. 717, 737, 120 S. W. 36; Baltimore & Ohio R. R. v. Stankard, 56 Ohio St. 224, 46 N. E. 577, 49 L. R. A. 381, 60 Am. St. Rep. 745; Healy v. Eastern Building, etc., Assoc., 17 Penn. Super. 385, 392, 393." See also United States Asphalt Ref. Co. v. Trinidad Lake Petroleum Co., 222 Fed. 1006; Kuhnhold v. Com-pagnie Gen&ale, 251 Fed. 387; Blair v. National Shirt and Overalls Co., 137 11I. App. 413; Nute v. Hamilton Ins. Co., 6 Gray, 174; Buel v. Baltimore, etc., R. Co., 24 N. Y. Misc. 646, 53 N. Y. S. 749; McLean v. Tobin, 58 N. Y. Misc. 528, 109 N. Y. S. 926; Darling v. Protective Assur. Soc., 71 N. Y. Misc. 113, 127 N. Y. S. 186; Savage v. People's, etc., Sav. Assn., 45 W. Va. 275, 31 S. E. 991. In Mittenthal v. Mascagni, 183 Mass. 19, 66 N. E. 425, 60 L. R. A. 812, 97 Am. St. Rep. 404, however, the court refused to allow an action in Massachusetts on a contract made in Italy for a service of fifteen weeks in the United States, where the contract provided that suit should be brought in Italy, if any dispute upon the contract arose between the parties. See also Daley v. People's Building Ac. Assoc., 178 Mass. 13, 59 N. E. 452.
73 Guaranty Trust etc. Co. v. Green Cove Springs Ac. R., 139 U. S. 137, 11 S. Ct. 512, 35 L. Ed. 116.
an insurance contract to the effect that seven years' absence should raise no presumption of death was also held invalid, the court denying the right of parties to fix by contract rules of evidence.74
7 4Gaffaey v. Royal Neighbors of America, 31 Idaho, 549, 174 Pac. 1014